Winter Group Architects P/L v Ku-ring-gai C

[2005] NSWLEC 546

Land and Environment Court

of New South Wales

CITATION:

Winter Group Architects P/L v Ku-ring-gai C [2005] NSWLEC 546

PARTIES:

APPLICANT
Winter Group Architects Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11437 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Seniors Living Development - Bulk
scale and height - Setbacks - Overshadowing - Landscaping and Solar access.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1

DATES OF HEARING:

04/08/2005, 11/08/05 and 19/09/05

EX TEMPORE JUDGMENT DATE:

09/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hannaford, solicitor
of Hannaford Lawyers

RESPONDENT
Mr Patterson, solicitor
of Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

19 September 2005

11437 of 2004 Winter Group Architects Pty Limited v
Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Ku-ring-gai Municipal Council’s refusal of a development application for the property known as No. 183 Ryde Road, West Pymble. By way of background these proceedings commenced as an on-site hearing and the Court had the opportunity of viewing the subject site as well as the other residences in the area, in particular those of the objectors to the proposal.

2 The site is located on the south-west corner of Ryde Road and Andrew Avenue, West Pymble, being Lot 4 in DP26761. It has a frontage to Ryde Road of some 39 m and a boundary dimension of 58 m to Andrew Avenue and a south-east boundary of 40 m and 60 m for the other boundary. The total area is 2,476 sq m and it currently contains a single dwelling house.

3 The site is generally level with an approximate fall of some 1.5 m. The locality is one where single dwelling houses predominate and it is what is regarded as a low density area. The nearest major shopping centre is at Gordon and in terms of my assessment for accessibility and location the proposed development on the subject site is an appropriate location for a seniors living development

4 The Court took extensive evidence on the view and heard from the objectors. The objectors’ concerns relate to the fact that the seniors living development application as proposed for seven units or seven dwellings is not in keeping with the character of the area, and that the area currently has a covenant over it in terms of brick single storey dwellings that the Ryde Road is an inappropriate location for a seniors living development. Also the existing traffic in the area would not be capable of a development for seven dwellings and the proposal would lead to impacts in terms of noise, loss of privacy and overshadowing.

5 The Court took the opportunity of visiting the premises of the objectors at No. 193 Ryde Road, Mr and Mrs Lee. Their concerns are with respect to the overshadowing of their northern windows to their dwelling house and the location of car parking and the landscaping of the proposed development.

6 The owner of the adjoining property in Andrew Avenue also gave evidence. The Court had the opportunity of inspecting her property and her concerns are with respect to any overshadowing and potential impacts of noise and drainage of the water onto her property.

7 The Court when it met on-site, at great length, with the benefit of the Court-appointed expert Mr Neil Kennan and with the benefit of council’s officers, Mr Stewart and Mr Bird, had the opportunity of further assessment of the application in terms of the issues that council had raised. As with many applications that come before this Court they are often put under a microscope and greater scrutiny.

8 The assessment of the development application by the council officers was of great assistance to the Court and when the Court heard the residents’ concerns, and observed the issues that were in council’s statement of issues, it was clear that the proposed development required amendment to ameliorate the adverse impacts of the proposed development. The Court provided a preliminary finding on the first day of the on-site hearing and expressed the opinion that a 7 unit development for the subject site was not an overdevelopment of the site and subject to impacts being ameliorated the proposal in concept for a seven dwelling seniors living development on the subject site is capable of being accommodated.

9 The Court also gave a preliminary determination in terms of the SEPP1 objection. The SEPP1 objection was submitted to the council in respect of cl 38 of the seniors living SEPP in terms of the provision for 25% of the rear of the site not having a two storey component to a development. The Court was provided with different interpretations of what would be the 25% rear area of the site. Being a corner site this question is somewhat made more difficult but at the end of the day I assessed it in terms of what would be a worst case scenario of the twenty-five per cent being from both frontages.

10 Perhaps a more logical or common sense interpretation for a corner site may be diagonally opposite the corner. I do not need to make a finding in that regard. In terms of the objectives of the standard for the 25% it is clear that the objectives are to control impacts on adjoining neighbours to ensure that the proposed development is not overbearing in terms of bulk, scale and height and also in terms of overshadowing impacts and privacy concerns.

11 The subject development application as amended in my opinion satisfies the objectives of the standard and the variation in my assessment should be upheld and the SEPP1 objection allowed. The provisions of State Environmental Planning Policy No 1 in terms of the aims and objectives of the policy and the provisions of or the objects of the Act in terms of section 5 are also satisfied and I consider that the SEPP1 objection is well-founded and should be upheld.

12 I will state also for the record, whilst I made a preliminary determination with respect to the SEPP1 objection I have also considered the amended plans in terms of the SEPP1 and I am satisfied that there is less concern even with the amended proposal in terms of setbacks, in terms of landscaping that can be provided, in particular deep soil planting at the rear of the site to ameliorate adverse impacts of the proposed development on adjoining properties.

13 I refer now to the concerns of the property owner adjoining in Andrew Avenue. The issue of drainage is addressed in the stormwater management plan and in terms of overshadowing whilst there may be some overshadowing it is not a matter that would warrant refusal as the dwelling received good winter sun. The overshadowing falls in the rear yard of that particular property and I am satisfied that the amenity of the adjoining property in Andrew Avenue has been considered. This is the property to the west of the subject site. The owner also expressed concern about the future of the existing retaining wall near the boundary and the applicant undertook that this would be retained and that landscaping and then a fence would be provided on the applicants land.

14 With respect to Mr and Mrs Lee the proposed development has been amended and the proposed development has now been setback some 4 m off the common boundary between the 2 properties. The Lee’s house is approximately 1.5 m off the boundary. With the separation distance this has allowed for solar access to more than reasonably be maintained on the property at No. 193 Ryde Road.

15 The Court recognises that this is the northern elevation of their dwelling house and it is appropriate that developments where possible should provide for solar access to be reasonably maintained. The applicant in my assessment has provided a setback which is more than reasonable and has endeavoured to maintain the solar access to 193 to a point which is most admirable and the overshadowing that is provided by the development as now shown in the amended plan is overshadowing that could not in any assessment be considered to be unreasonable.

16 The solar access to be maintained more than complies with the strictest standards and I do note that if the site had been developed for even single dwelling houses the resultant development no doubt would have been one that would have created greater impacts in terms of solar access and I consider that the applicant’s response to the Lee’s concerns of overshadowing has been most admirably addressed.

17 With respect to the issue of landscaping the Lees were also concerned about landscaping providing overshadowing. The overshadowing or filtered sun received in particular through native species of trees is generally not considered and there must be a balance struck between ensuring that the proposed development contributes to the vegetated nature of the area in compliance with council’s controls. Nonetheless the applicant is prepared to have regard to this in the selection of plants.

18 The issue of the visitor carparking spaces. There was a further amendment to the plans as a result of Mr Kennan’s further supplementary report and the wall is to be constructed adjacent to the visitor carparking spaces and there is to be intervening landscaping between the Lee’s property and the subject carparking spaces. I am satisfied that the provision of the wall will ameliorate noise impacts and other concerns of the Lees in terms of parking spaces adjacent to their boundary. There is a significant separation distance between the visitor carparking spaces and together with the proposed landscaping to screen the wall of the carparking spaces from the Lee’s perspective I am satisfied that the proposed visitor carparking spaces would not warrant refusal of the application.

19 The conditions on landscaping in terms of the height of trees is one that will be further considered in terms of amended landscape plan and I have heard evidence from Mr Bird in terms of ensuring that the hedge can be conditioned to be 1.8 m such that overshadowing would not further impact on that northern elevation of the Lee’s property.

20 It is also important as I stated that there be canopy trees provided on the subject site and this can be achieved with the space that has been provided around the buildings together with the deep soil planting, which is now provided in the amended plan. For the record there were a number of concerns that the Court had on the first occasion and these have now been addressed in the amended plan.

21 The Court initially questioned the need for the extent of the large setbacks to Ryde Road and as such the development has been sited closer to Ryde Road which provides for greater space to be achieved on the site. Reducing the setback to Ryde Road still provides for an acoustic wall to the front courtyards and ensure that the amenity of the proposed dwelling units in the seniors living development is acceptable. I am satisfied that whist the subject site has a frontage to Ryde Road, which is a very busy road, this would not warrant refusal of the application. The development recognises the constraint and it has been designed appropriately.

22 The proposed access is from Andrew Avenue for the proposed development with only pedestrian access to Ryde Road for 4 of the individual dwellings. The proposal was amended from the first time that the council assessed the application in terms of the number of dwellings being reduced and 7 dwellings on the subject site can fit in terms of the environment and in terms of maintaining amenity for adjoining residents. The proposal was also amended in terms of providing 2 parking spaces for each of the dwellings facing Andrew Avenue and appropriate setbacks also provided in the amended proposal.

23 The development in terms of council’s original statement of issues has been further assessed and as with many applications that go through amended plans it is clear that the applicant has responded to the concerns of the council and the Court and there is no outstanding issue in the Court’s assessment that would warrant refusal of the application. It was agreed some of the issues that were contained in the council’s statement can be appropriately conditioned by the amended plans as well.

24 In particular, one of the issues identified is the need for an access pathway and this is provided in the conditions to ensure that there is a continuous concrete path from all of the dwelling units to the nearest bus stop. The access in terms of the seniors living SEPP is one that the location and access in my assessment is appropriate for a seniors living development and therefore satisfies the requirements of the SEPP.

25 With respect to the issue of Sydney Water availability to water and sewerage the applicant has provided a letter which now satisfies the council.

26 The issue of stormwater. With the amended plans there is a need for an amended stormwater concept plan, however, I am satisfied that this can be achieved and a deferred commencement has been agreed between the parties. The issue in the first plans concerning deep soil planting and the seniors SEPP. Once again I am satisfied with the amended plan that there has been adequate provision for deep soil planting and importantly the space to provide for canopy trees.

27 The tandem spaces originally identified as an issue have been eliminated from the proposed development and double garages are proposed in place thereof.

28 The issue with respect to the requirements of council’s DCP for waste management. The subject plans have been amended such that there will no longer be reliance on individual bins for the 7 dwellings but rather it will be centrally located in the amended plan. In the Court’s assessment the applicant has responded to this concern and it is appropriate that there be a communal collection point for even a development containing seven dwellings, in particular having regard to a seniors living development.

29 The issue with respect to SEPP1, I have already addressed. I am satisfied that that SEPP1 should be allowed in the circumstances of this case. The issue with respect to the residents’ concerns, I do appreciate the residents’ concerns when change is experienced in an area however, I have carefully assessed the amended application in terms of their concerns and I am satisfied the proposal now warrant approval.

30 I must note for the record that the proposed development is one that is permissible in terms of the seniors living SEPP and while council’s own planning scheme controls, the KPSO, and the covenant were raised as issues, the seniors living SEPP overrides any inconsistencies in this regard. I am satisfied that the proposal with two-storey components will not be out of keeping with the character of the area and it will sit comfortably in a landscaped setting which will provide a positive contribution to the environment.

31 The concerns about traffic. The council did not contest or did not consider that the capacity of the street, that is Andrews Avenue, could not accommodate the subject development and I am satisfied with the parking layout and with the provision to allow access in a forward direction and exit in a forward direction from the subject site the dwellings are appropriate and will not unreasonable impact on the traffic flow of the area and can be accommodated.

32 It is understood that residents do express concerns about increased traffic and development does represent change in an area. The role of the Court is to ensure that the impacts are not unreasonable and I firmly believe with the process that the development application has gone through in these proceedings the result or the outcome for the community will be one that the proposed development will sit comfortably in its natural and built environment and also provide necessary seniors living within the municipality of Ku-ring-gai, an aging population. The proposal provide a choice, and alternative accommodation without impacting on adjoining properties.

33 I consider that there has been great care taken in the amended plans to ensure that the issues of the residents have been considered and the proposal represents an outcome that is more than reasonable in the circumstances of the case and it sits comfortably in terms of an assessment under the seniors living SEPP and is not an overdevelopment. The Floor Space Ratio of the SEPP provides for 0.5:1. The proposed development is some 0.47:1. The built-upon area is 58% with a soft landscaping permeable surface area of 42%. The proposed development in terms of overshadowing also does not create impacts on adjoining properties that are unreasonable in any way.

34 Where matters are adjourned and there are amended plans it is important that a judgment reflects the concerns of the objectors and I have carefully considered their concerns and they were most articulate in terms of their concerns. At the end of the day I must assess the development application in terms of the planning regime and the seniors living SEPP and I am satisfied that the development will sit comfortably in the streetscape. Thank you to the parties for the way that this has been progressed.

35 The Court on the first occasion asked whether the applicant would be prepared to pay the continuing cost of the Court-appointed expert and Mr Kennan has provided assessments on the amended plans to assist the Court and the applicant agreed to pay the costs of Mr Kennan, the Court-appointed expert, from the date of the adjourned proceedings on site.

36 Annexure A is the conditions agreed to between the council and the applicant which includes a deferred commencement for the stormwater and deferred commencement for a landscape plan and conditions relating to footpaths and access and the other conditions that are of importance in terms of the development relate to ensuring that the proposed development satisfies council’s requirements for waste management and other issues that are contained and not objected to by the applicant.

37 On the basis of my assessment and with the assistance of not only the Court-appointed expert but council’s officers, I see no reason as to why this development application should now not be approved. Therefore, the formal orders of the Court are:

1. The appeal in respect of the property known as 183 Ryde Road, West Pymble, is upheld.
2. The development application submitted to Ku-ring-gai Council and as amended for a Seniors Living development containing 7 units is approved subject to the conditions contained in Annexure A.
3. The exhibits except for L, M, N, O, P and 7 and 8 are returned.
4. The order for costs is as agreed between the parties. The applicant is to pay the court-appointed expert’s costs from the date of the adjournment of the on-site hearing.

___________________

J S Murrell
Commissioner of the Court
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